AAA (Syria) & Ors, R (on the application of) v The Secretary of State for the Home Department

When asylum seekers are removed without determination of their claims, the court must decide for itself whether substantial grounds show a real risk of treatment contrary to article 3 of the European Convention on Human Rights, including refoulement caused by an inadequate asylum system. Diplomatic assurances require assessment in their practical setting; good faith alone is insufficient.

Special regard should be paid to UNHCR evidence within its remit. A receiving state's asylum procedure must be reliably fair and effective. Where serious deficiencies create a real risk that valid claims will be rejected and applicants refouled, removal is unlawful under section 6 of the Human Rights Act 1998. Policy guidance positively authorising those removals is also unlawful.

The Secretary of State adopted a policy under which certain asylum claims would be treated as inadmissible and the applicants relocated to Rwanda under the Migration and Economic Development Partnership. The individual appellants and Asylum Aid challenged the policy, the proposed removals, the statutory certifications and the decision-making procedure.

The Divisional Court, Lewis LJ and Swift J, dismissed the generic challenges in [2022] EWHC 3230 (Admin), although several individual decisions were quashed on procedural grounds. The appellants appealed on grounds concerning article 3, refoulement, the Refugee Convention, retained EU law, statutory certification, data protection and procedural fairness.

The central issue was whether, despite Rwanda's assurances, there were substantial grounds for believing that transferred asylum seekers would face a real risk of refoulement or other article 3 mistreatment because their claims would not be determined properly and fairly.

1. Appeals allowed on the safety and refoulement issue by a majority. The Master of the Rolls and Underhill LJ held that there were substantial grounds for believing that asylum seekers relocated under the partnership would face a real risk of refoulement. The Rwandan refugee-status determination system was not, at the relevant time, reliably fair and effective. Removal would therefore breach article 3 of the European Convention on Human Rights and section 6 of the Human Rights Act 1998. The Lord Chief Justice dissented on this issue.

2. The court had to determine the article 3 risk objectively. The question was not merely whether the Secretary of State had been entitled, on public-law principles, to regard Rwanda as safe. Assurances given in good faith were important, but their practical reliability depended on the receiving state's existing practices, institutional capacity, training, legal assistance, appeal mechanisms and safeguards.

3. The majority attached special, though not decisive or overriding, weight to UNHCR's evidence because the matters were within its remit and expertise. The evidence disclosed serious deficiencies in asylum interviews, legal representation, decision-making skills, reasons, training and the untested judicial appeal. Past refoulement and misunderstanding of Rwanda's international obligations were relevant to predicting whether assurances could be delivered.

4. An effective asylum procedure is an essential safeguard against direct and indirect refoulement. Monitoring and promised improvements did not cure the deficiencies before relocations began. The published guidance and assessment authorising removals were consequently unlawful under the principle in Gillick.

5. The Refugee Convention does not oblige a state to determine every asylum claim made within its territory. Removal to a genuinely safe third country is not prohibited merely because the claimant has no prior connection with it, nor does such removal constitute a penalty under article 31. Those grounds failed.

6. The retained-EU-law, circumvention of Schedule 3, data-protection and systemic procedural-unfairness grounds also failed. Fairness normally required an opportunity to address Rwanda's general safety and access to legal assistance. Nevertheless, a seven-day baseline for representations was not inherently unlawful where effective extensions were available, although the flexibility policy ought to be published.

7. The certifications that the human-rights claims were clearly unfounded could not stand. Asylum Aid's appeal was dismissed, permission on the data-protection ground was refused, and the remaining individual procedural challenge was dismissed.

1. Court of Appeal (Civil Division): By a majority, allowed the individual appellants' appeals on the article 3 safety and refoulement issue and held the Rwanda policy unlawful. It dismissed Asylum Aid's appeal and the other grounds.
2. High Court, Divisional Court: In [2022] EWHC 3230 (Admin), Lewis LJ and Swift J dismissed the generic challenges to the Rwanda policy. Several individual decisions were quashed on procedural grounds, from which the Secretary of State did not appeal.